Saturday, April 21, 2012

On Rep. McGovern and The People's Rights Amendment

The following amendment to the U.S. Constitution is being pushed by Representative McGovern (D-MA) and others:

The People's Rights Amendment

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

This is just seventeen different kinds of poorly thought out. The background to it is the Citizens United decision of the Supreme Court, which held that certain restrictions on corporate election expenditure violate the freedom of speech. This was a fairly controversial decision because it expanded the sense in which such free speech rights could be held to apply to corporations. Rep. McGovern, however, seems to have gotten it into his head that the whole problem boils down to treating corporations as legal persons under the law, which is neither new nor exceptional. Corporations, as such, cannot exist unless they are treated as quasi-persons, with their own property and contract rights, with limited liability. What Rep. McGovern is calling for is the abolition of all protections for corporate ventures: if only natural persons have rights (section 1) and this does not include corporations (section 2), then corporations (and thus their owners) have no due process protections from confiscation of property and have no ability to form enforceable contracts. Likewise, by restricting free press rights to natural persons, corporately owned newspapers lose the protection of the First Amendment -- the people have freedom of the press (section 3) but no corporations whatsoever have this freedom (section 2), so Constitutional protection for what we usually think of as the press shuts down completely -- individuals can have freedom of press, but no corporate entities can. Likewise, churches are corporate entities, and to the extent that they own property, etc., they are legally established as such by laws; the people have freedom of religion (section 3) but no corporate entities do (section 2), so if the state started shutting down churches this couldn't be considered a violation of the freedom of religion. Likewise, nonprofit organizations have no right to speak out for or against anything, because they are corporate entities established by law; if, say, Greenpeace wants to protest, the government can just shut them down without violating any rights -- they are a corporate entity, and have no freedom of speech. And so on and so forth.

The FAQs on the website try to deny this, but when you compare what they say with what the proposal actually says, the two don't match up. They claim, for instance, that "Eliminating corporate money in politics or eliminating the ability of corporations to strike down laws that executives of a corporation may think limit corporate marketing campaigns will not effect the speech rights of a single person." But the amendment doesn't say anything about corporate money in politics, nor does it focus on only election campaigns: the amendment says that no corporate entities of any kind have any kind of freedom of speech; and it is just not possible for this to be the case and there to be no effects on the speech rights of natural persons. Ditto with freedom of press, where they have an even more egregiously clueless response. They say, "The First Amendment clearly prevents government suppression of “the press,” whether a corporation or not, and that is as it should be." But this is not how Constitutional amendments work. Once the above amendment became part of the Constitution, the Constitution has to be interpreted in light of it. And Sections 1 and 2 clearly, and I mean clearly, say that no corporation has any rights under the Constitution, which will include freedom of press. Likewise, in talking about assembly, they say, "The People's Rights Amendment simply means that if we the people decide through our legislatures to authorize corporate entities and create advantages for such entities, we may also limit the misuse of those entities for political purposes." But, again, this is not what the proposal actually requires: what the proposal means is that legislatures may limit any use of any corporate entity for any purpose. There are no restrictions. I mean, do we really want to give governments unlimited power to shut down and confiscate the property of Planned Parenthood, the Southern Baptist Convention, the NAACP, the ACLU, the March of Dimes, and so forth in the name of the rights of the people? Is that really the most effective and proportionate way to respond to the danger of excessive corporate funds in election campaigns? If election campaigns are really the issue, couldn't we at least have a proposed amendment that said something about, I don't know, election campaigns, rather than giving legislatures carte blanche to do anything they want with corporate entities of any kind?

The amendment, in short, is an attack on a longstanding right of the people, namely, their right to form not just groups but corporate bodies recognizable by the government; and there is no way to shut down the rights of corporations this way without massively curtailing the freedom of natural persons. Sane opponents of the Citizens United decision don't attack the principle that corporations are legal persons; they recognize instead that the rights of corporations are derivative rights necessary for protecting the rights of natural persons, and they criticize the decision for detaching these derivative rights too much from their fundamental source and treating them as freestanding. This gets us into territory where reasonable people can give reasonable arguments. Rep. McGovern, on the other hand, decides that to avoid this menace of corporations having too much power we just need to expand massively the powers of government beyond anything we've ever seen, stripping away protections of the rights of the people by disallowing one of the major kinds of indirect protection for those rights. It's trying to fix a car with dynamite; no good can come of it.

I confess I had never expected to come across an American political movement more irritatingly stupid than the National Popular Vote movement, which manages to get absolutely everything about elections wrong while simultaneously being outrageously self-righteous about it, but I should have realized that this was naive and that somewhere there was a stupider idea just waiting for some politician to propose, and Representative McGovern has risen to the challenge. As with all such stupid ideas, if you only look at some superficial terms and slogans, it can sound somewhat reasonable; as with all such stupid ideas, it builds on anger or confusion about a serious issue, and perhaps a genuine problem. But as with all such stupid ideas, it is stupid as only stupid political ideas can be.

2 comments:

Following on from the points you make, it seems to me that any honest reading of Sectons 1 & 2 of the ammendment clearly contradicts any non-trivial reading of Section 3, which leaves you wondering what in the world could be done with such a bad piece of writing were it to actually become law.

I think that's exactly right; freedom of press, etc., has traditionally been considered to include the freedom of the people to do things by corporate means. If we include these, however, then the Amendment doesn't do what it's supposed to do, since we are right back where we were. There was a post recently on this amendment proposal at The Volokh Conspiracy where this kept coming up in the comments thread: once you expand Section 3 to include the obvious things you want to keep protecting, like churches and news organizations, it's not so clear where the amendment actually leaves us.

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